In Buenos Aires, on July 2003, 17.452, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno, with the second of those named as president, met to rule on the proceedings entitled: EMPLAST SA, file TFN No. XNUMX-A;
Dr. Winkler said:
I.- That on pages 39/49 the signature of the epigraph files an appeal against Resolution DV SAPLA No. 7596/01, issued in summary EAAA No. 605.057/96, by which it is sentenced to pay a fine, in accordance with paragraph a) of section 1 of art. 954 of the CA. It states that it imported, through resolution n° 79.196-8/96 from Germany three air replacement and treatment equipment, the description of which appears in the aforementioned dispatch, classifying the equipment in pa 8415.83.009, with 10% duties and 0% statistical rate. Customs, on the contrary, considered that pa 7322.90.00 was applicable, with 18% duties and a 3% statistical rate. He admits having paid the duties, without this implying any admission of having committed the infraction charged against him, since he says that the declaration was complete and not punishable, in accordance with the terms of art. 959 of the CA. He elaborates on his arguments regarding the type of crime that the customs service considers applicable. He cites doctrine and jurisprudence that would support his case, and considers that opinion no. 40/93, on which the conviction is based, is not in accordance with the law, since the customs service considers that the text of the item corresponding to the tariff item would be the fundamental portion, when in its opinion it is the description of the merchandise, actually imported, which turns out to be the fundamental portion (see page 42 of the start of the document). The Customs Office adds that the foregoing makes it clear that even if the item declared at the import clearance was erroneous, from the text of what the customs office calls the SUPPLEMENTARY PORTION, and which in our view we understand to be the FUNDAMENTAL PORTION of the declaration, it appears that the description of the merchandise was sufficient to classify it under the heading that the customs office considered correct (see the cited fs. 42). It refers to the classification function of the customs service and cites the provisions of Res. ex ANA No. 1789/92. It considers that it has not committed the infraction, and alternatively requests that the principle of doubt contained in art. 898 of the CA be applied, or that the penalty imposed be attenuated, all with costs.
That on pages 56/57 and back, the tax representative answers the transfer duly conferred. He relates the printed procedure to the file, formulates a generic denial of each and every one of the statements of the plaintiff that are not the object of his express recognition and emphasizes that, in his opinion, the inaccurate declaration that motivated the fine imposed has been made. To this end, he says that not only in the part corresponding to the tariff item the plaintiff has not declared what was appropriate but also in what concerned the detail of the imported good and that it prevented Customs from correctly reclassifying the merchandise, causing a fiscal loss greater than that legally permitted (see pages 56 back and 57 of his response). He requests that the appeal and the exception be rejected, sic, with express imposition of costs (see pages 57 back).
II.- That at fs. 63 the files are referred to Chamber E, which calls for judgment. That from the comparison of the summary records EAAA No. 605.057/96 it appears that at fs. 1 the complaint-report is drawn up from which it arises that from the verification made of import dispatch no. 79196-8/96, CANAL VERDE, item 1 turned out to be THREE AIR REPLACEMENT AND TREATING EQUIPMENT, WITHOUT HUMIDIFICATION EQUIPMENT, classifiable by PA 7322.90.00, DI 18% Est. 3%, instead of as stated, this situation causes a fiscal loss of $ 56.740,87, for which a complaint is filed for violation of art. 954 CA (…). At fs. 9 the summary is opened and the proceedings are brought to the attention of the dispatcher and the appellant company in this case. The latter answers the view at pages 21/27. At pages 50, the attached catalogue or identification brochures of the merchandise in crisis are required, with plans at pages 55/56 and photos at pages 57/61. At pages 62 and back, the report referring to said photographs is produced, and at pages 64/65, Technical Opinion No. 56/00, from which it appears, in what is of interest, that the declaration contained in document No. 79196-8/96 is complete and that, on the basis of the documentation in the file. and other reports, the merchandise in question is a hot air generator consisting mainly of a steel enclosure, a fan, a motor, 2 filters and a temperature regulator, which does not have a humidifier, as stated on fs. 53 of the catalog attached by separate string, so the good in question is not covered by the terms of heading 84.15, given that it only classifies those machines that have a fan with a motor and are designed to simultaneously modify the temperature and humidity of the air. It is concluded in the aforementioned technical report that the merchandise in question is classified in PA NCM 7322.90.00. On fs. 67 and vta. and 73/74 the defendant requests a new opinion, which is issued through Note No. 1777/0, which literally says (see fs. 76), in what is now of interest: In view of the above, it is clear that the description of the merchandise made by the documentary in the complementary portion of the Import Clearance cited, allows it to be classified only in the tariff position indicated in the fundamental portion, since if it had not been so the declaration would have been incomplete or dual. On fs. 82 back, the fine to be applied is calculated, and on fs. 83/84 Resolution No. 7596/01 is issued, now appealed.
III.- That from the copy of decree n° 79196-8/96, made official on 11.7.96, it appears that the plaintiff declared that it was importing merchandise of German origin, classifiable under tax code 8415.83.00, with 10% duty and 0% statistical rate. The tax issue is not in dispute in this case.
In the complementary portion, referring to the description of the merchandise, the plaintiff declared that it was importing air treatment and replacement equipment, consisting mainly of a radial fan with suction from both sides. Three-phase motor of 1500 revolutions per minute, 380 v. Air heater with galvanized corrugated tubes for the circulation of hot water, with temperature regulator, steel casing, filters and other connection and safety elements (…).
Customs, on the other hand, considers that the applicable pa was 7322.90.00, and it should be noted that, as reported on page 4 of the previous administrative documents, the important thing to note is that the merchandise in question does not have built-in humidification equipment.
In my opinion, it is clear from the above and from the verification of the office that the plaintiff did not declare at any time that the equipment had a built-in humidification device (note that the PA applied by customs is the residual one). Although it is true that the importer was asked for explanatory brochures, as can be seen from the account in the preceding section, it does not seem that the customs service had any difficulty in reclassifying the merchandise to demand the difference in taxes.
That on page 76, as I said, it was recognized that from the complementary portion declared by the plaintiff it was possible to classify the merchandise in the applicable tariff position.
IV.- That, the customs declaration having been formalized without the Maria System, I have ruled that the collaboration that the interested party provides to the customs service and his obligation to provide all the relevant data so that the importation can be carried out adequately, should not be confused with the duty of the customs to assess and classify (art. 234, ap. 2 of the CA). Since the declaration was complete, it does not appear to be punishable (see, among many others, Jiménez, Juan Carlos, judgment of 9.8.96 of the Alzada, Sala V, Expreso Emir SA, Sala III, of 28.3.96).
Even in the case of clearance with a green channel, that is, without customs control prior to release, this reasoning does not modify what has been said, although the duties are payable (see document of Prodesca SA, Chamber E, judgment of 16.8.96).
That, in my opinion, the fact that explanatory brochures were required does not change what has been said, since, precisely, if the customs demanded them during the course of the summary it was because it adhered to the declaration of the merchandise and because it needed a measure to better provide, which invalidates that the declaration of the complementary portion was complete, even more so since the technical body itself recognizes in the aforementioned fs. 76 of the summary records that the reclassification could have been made on the basis of what was declared by the documentary.
V.- That, therefore, I vote to annul Resolution 7596/01, insofar as it was the subject of the appeal, that is, in the criminal aspect disputed by the plaintiff, without costs, considering that for the reasons recently set out, in my opinion, the customs office could have considered itself credibly entitled to impose the penalty.
Dr. Gustavo A. Krause Murguiondo said:
From reading the ANCS report No. 593/96, appearing on page 8 of the previous administrative proceedings, it does not arise that the declaration of quality and identity of the merchandise contained in what the Customs refers to as the complementary portion of the declaration committed, contains any error or falsehood. On the contrary, it is maintained that said complementary declaration allows classification in position 7322.90.00, applied by the customs service.
That what said report, on which the appealed ruling is based, calls the fundamental portion of the compromise declaration is nothing other than the declaration of the applicable tariff position.
That by application of art. 957 of the Customs Code, when, as in the case, all the relevant data for the classification of the merchandise have been provided truthfully by the importer, in this case in the complementary portion, the error committed in the tariff classification, that is, in what is called by Customs the fundamental portion, is not punishable.
That the implementation of the green channel by Customs, although it is true that it may make customs control difficult or impossible in many cases, does not imply that the principles referred to above have had any legal modification. That it should therefore be noted that the existence of an infraction conviction motivated not by legal reasons, but by the difficulties derived from the implementation of the channel system (green, orange or red) for the entry of merchandise into the market is not admissible.
On the other hand, if it were understood that the declaration submitted to the customs service is dual or incomplete, as the report on fs. 76, in fine, seems to suggest, it is worth remembering in this regard that it is reiterated by jurisprudence that such declarations are not punishable under the framework of art. 954 of the Code of Customs.
That, consequently, I vote to revoke article 4 of resolution No. 7596/01 of the Department of Customs Legal Procedures.
Given that the issues raised in the case arise within the framework of a declaration containing an erroneous tariff position, in which the error incurred by the importer has not been explained or justified in the case, in the area of the entry of merchandise into the market through the green channel, which could have led the Treasury to consider itself entitled to litigate, I vote to impose costs in order.
That this Chamber of the Court, as will be seen, has the power to impose costs in its order.
That, in the opinion of the undersigned, the reform introduced by Law 25239, in its point 18, to art. 184 of Law 11683, must be interpreted extensively, considering that it also reforms art. 1163 of the Customs Code. No other interpretation is possible given that it is the same Court, with the exercise of similar jurisdictional powers in both areas, in which there is no reason to differentiate them at the time of the imposition of costs. The precise basis for the extensive interpretation is given: the legislator in this case, when sanctioning the law minus dixit cuam voluit, that is, has expressed in the letter less than what corresponds to its true real intention, which has been to return to the same, without any distinction, the power to exempt from costs when justified. The reform introduced by Law 25239, point 18, is also expressive of a general principle, enshrined in all, or almost all, of the Procedural Codes, in relation to the exercise of the jurisdictional function. To claim that this principle can be applied in the Tax Court only partially, without any possible justification, exceeds the margins of reasonableness of interpretation.
If the case were approached from the point of view of gaps in the law, and not from the point of view of extensive interpretation, it could be stated that in the situation there is, as Karl Larenz discusses in the Methodology of the Science of Law, Ediciones Ariel SA, Barcelona, 1966, p. 293, a case of a hidden regulatory gap. That is to say, in the case the rule of art. 1163 of the Ad. Code apparently subsists, but it is no longer applicable because according to the principles of the legal order (contained in the case in the various Procedural Codes) or in a subsequent rule for analogous situations (art. 184 law 11683 with the reform of law 25239), its scope must be reduced or modified to apply the principles of the subsequent rule for analogous cases or of the legal order, taking into account the purposes of the same, which arise in this case from the foundations of law 25239 itself.
Dr. Catalina García Vizcaíno said:
That I favor the confirmation of the contested resolution insofar as it has been the subject of the appeal, with costs, since I consider that the infringement charged by the customs was committed since the appellant omitted a substantial element in its declaration of the so-called complementary portion that it calls the fundamental portion, since it did not indicate that the imported device lacked a humidifier.
That this omission prevents, in my opinion, the application of the principle of art. 957 of the CA, since the plaintiff did not indicate all the elements necessary to allow the correct tariff classification of the merchandise in question in this case.
That, in effect, the PA chosen by the plaintiff was 8415.83.009, stating: Others. Without cooling equipment. Machines and devices for air conditioning that include a fan with a motor and the appropriate devices to modify the temperature and humidity. Even if they do not separately regulate the hydrometric degree.
However, it is not disputed that the imported device lacked a humidifier, which is why it did not fit the aforementioned description.
That when specifically describing the imported machine in the aforementioned dispatch, it was defined by the appellant as air replacement and treatment equipment composed mainly of a radial fan with suction from both sides, a three-phase motor of 1500 revolutions per minute, 380 V. Air heater with galvanized corrugated tubes for the circulation of hot water, with temperature regulator, steel casing, filters and other connection and safety elements.
That in this description he did not mention the absence of a humidifier, which constitutes, I repeat, a substantial omission configuring an inaccurate declaration, taking into account that according to the physical inspection of fs. 62 of the ant. adm. it turned out that the machine in question contained a space available to place, if necessary, another heater as well as an air humidifier.
However, it was imported without this humidifier, and not only the declaration of the so-called fundamental portion was inaccurate, but also the so-called complementary portion, as it did not mention the absence of the humidifier, which determined its inclusion in another tariff item.
That the customs only determined the correct tariff classification (7322.90.00) by examining the catalogues that it requested from the plaintiff and by the physical inspection mentioned (see pages 64/65 and 76 of the previous administrative documents).
That is why Technical Opinion No. 56/2000 concluded that the merchandise consigned in DI 79196-8/96 should be classified as: Hot air generator composed of a steel enclosure, a fan, a motor, 2 filters and a temperature regulator, without a humidifier of PA 7322.90.00 (pages 65/66 of the previous administrative documents).
In addition, Note No. 1777 (DV CLAR) ruled out that the defendant's declaration was incomplete or dual, while noting consistency between the tariff position chosen by the plaintiff and the description made below, since this position does not correspond to the tariff position of the resulting merchandise... (page 76 of the administrative antecedents).
Furthermore, it should be noted that it has been said that art. 954 of the CA gives priority to the truthfulness and accuracy of the declaration, regardless of any subsequent activity by the declarant - except for the cases provided for in the law itself - or of the control that the customs service may carry out. This means that, in principle, the reliability of what is declared through the corresponding documentation is the basis of an entire system that does not depend on the greater or lesser efficiency with which the National Customs Administration carries out the control tasks assigned to it; on the contrary, adherence to such conditions tends to prevent, under the protection of the export or import regime, where appropriate, manoeuvres that distort and pervert it from being perpetrated (CS, Subpga SACIE and I., dated 12/5/92).
That in this case the correct tariff classification was only determined by examining the catalogues and physically inspecting the merchandise, which involved activities subsequent to the declaration itself (see pages 57/62 back, 65/66 and 76 of the previous administrative documents).
Therefore, I vote for:
1°) To confirm DV SAPLA Resolution No. 7596/01 insofar as it has been the subject of the appeal. With costs.
2°) After signing this document, the appellant must pay, within five days, 2% of the fine for which she is actually convicted, under penalty of the General Secretariat of Customs Affairs issuing a certificate of debt.
Given the preceding vote, the imposition of costs is hereby submitted to a new vote.
Dr. Winkler said:
Since the majority opinion is to annul Resolution 7596/01, for the purposes of costs I refer to my vote, which resolves not to impose them.
Dr. Krause Murguiondo said:
Reiterate your vote as to how costs should be imposed.
Dr. García Vizcaíno said:
That it is considered that the majority has agreed not to impose costs on the Treasury, which was proposed to be considered defeated in the votes that preceded me.
That's what I vote for.
Pursuant to the above vote, by majority, IT IS RESOLVED:
